The High Court has refused Goode Concrete’s application for interlocutory injunctions that would have restricted three rivals from selling or offering certain concrete and cement products at allegedly below-cost prices while the company’s competition action proceeded.
The application, made in November 2010, alleged that Cement Roadstone Holdings, Roadstone Wood and Kilsaran Concrete had engaged in anti-competitive conduct in the greater Dublin ready-mixed concrete market. Goode claimed the defendants were acting together, including through collusive tendering or collective dominance, to force it out of the market. The defendants denied those allegations, including any secret ownership, control, financial interdependence or concerted conduct between CRH and Kilsaran.
The judgment records Goode’s claim that its market share fell from 15% in 2008 to 5.5% in 2010, and that it failed to win any tendered contracts during 2010. Goode relied on tender prices it said were below the defendants’ average variable costs and on a recorded conversation in which a Kilsaran director was alleged to have discussed reducing prices. Those claims and figures were disputed. The court did not resolve them.
Justice Cooke applied the interlocutory injunction principles in *Campus Oil Ltd v Minister for Energy (No. 2)*. He said it was unnecessary to determine in detail whether there was a serious issue to be tried. He indicated that if evidence at trial established a causal link between falling tender prices and a concerted approach by the defendants, a serious issue would arise under the competition prohibitions. That was not a finding that the alleged conduct occurred.
The application failed because Goode had not provided adequate evidence that damages would be insufficient if it later won the case. The court noted that the alleged losses were commercial and that the company had identified contracts and tender prices from which losses might be assessed. It also found the evidence did not substantiate the claim that Goode was likely to be forced out of business before trial: financial accounts, detailed loss figures and evidence of the company’s financial position had not been provided. The court also questioned whether Goode could secure the undertaking in damages that would be required if an injunction were granted.
The judge said other considerations also weighed against relief, including the difficulty of framing and enforcing an injunction based on average variable costs, its potential effect on negotiated contracts with third parties, and uncertainty about whether it would enable Goode to win enough business to remain viable. The court did not decide the defendants’ preliminary argument about whether section 14(5)(a) of the Competition Act 2002 precluded interlocutory relief. The ruling concerned interim relief only; the underlying action remained for trial.